BILL NUMBER: AB 2826	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Cardoza
   (Coauthors:  Assembly Members Battin, Cox, Cunneen, Dickerson, and
Rod Pacheco)

                        FEBRUARY 28, 2000

   An act to amend Section 190.2 of the Penal Code, relating to
crimes.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2826, as introduced, Cardoza.  Murder:  special circumstances.
   Existing law provides that the penalty for a defendant found
guilty of murder in the first degree shall be death, or confinement
in the state prison for a term of life without the possibility of
parole, where one or more special circumstances have been charged and
found to be true.
   This bill would include within the enumerated special
circumstances a murder in which the defendant mutilated the victim
for the purpose of concealing the act or a murder in which the
defendant committed sexual acts upon the corpse.
   This bill would provide that the above provisions shall become
effective only when submitted to, and approved by, the voters of
California.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 190.2 of the Penal Code, as amended by Section
2 of Chapter 478 of the Statutes of 1995, is amended to read:
   190.2.  (a) The penalty for a defendant who is found guilty of
murder in the first degree is death or imprisonment in the state
prison for life without the possibility of parole if one or more of
the following special circumstances has been found under Section
190.4 to be true:
   (1) The murder was intentional and carried out for financial gain.

   (2) The defendant was convicted previously of murder in the first
or second degree.  For the purpose of this paragraph, an offense
committed in another jurisdiction, which if committed in California
would be punishable as first or second degree murder, shall be deemed
murder in the first or second degree.
   (3) The defendant, in this proceeding, has been convicted of more
than one offense of murder in the first or second degree.
   (4) The murder was committed by means of a destructive device,
bomb, or explosive planted, hidden, or concealed in any place, area,
dwelling, building, or structure, and the defendant knew, or
reasonably should have known, that his or her act or acts would
create a great risk of death to one or more human beings.
   (5) The murder was committed for the purpose of avoiding or
preventing a lawful arrest, or perfecting or attempting to perfect,
an escape from lawful custody.
   (6) The murder was committed by means of a destructive device,
bomb, or explosive that the defendant mailed or delivered, attempted
to mail or deliver, or caused to be mailed or delivered, and the
defendant knew, or reasonably should have known, that his or her act
or acts would create a great risk of death to one or more human
beings.
   (7) The victim was a peace officer, as defined in Section 830.1,
830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37,
830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged
in the course of the performance of his or her duties, was
intentionally killed, and the defendant knew, or reasonably should
have known, that the victim was a peace officer engaged in the
performance of his or her duties; or the victim was a peace officer,
as defined in the above-enumerated sections, or a former peace
officer under any of those sections, and was intentionally killed in
retaliation for the performance of his or her official duties.
   (8) The victim was a federal law enforcement officer or agent who,
while engaged in the course of the performance of his or her duties,
was intentionally killed, and the defendant knew, or reasonably
should have known, that the victim was a federal law enforcement
officer or agent engaged in the performance of his or her duties; or
the victim was a federal law enforcement officer or agent, and was
intentionally killed in retaliation for the performance of his or her
official duties.
   (9) The victim was a firefighter, as defined in Section 245.1,
who, while engaged in the course of the performance of his or her
duties, was intentionally killed, and the defendant knew, or
reasonably should have known, that the victim was a firefighter
engaged in the performance of his or her duties.
   (10) The victim was a witness to a crime who was intentionally
killed for the purpose of preventing his or her testimony in any
criminal or juvenile proceeding, and the killing was not committed
during the commission or attempted commission, of the crime to which
he or she was a witness; or the victim was a witness to a crime and
was intentionally killed in retaliation for his or her testimony in
any criminal or juvenile proceeding.  As used in this paragraph,
"juvenile proceeding" means a proceeding brought pursuant to Section
602 or 707 of the Welfare and Institutions Code.
   (11) The victim was a prosecutor or assistant prosecutor or a
former prosecutor or assistant prosecutor of any local or state
prosecutor's office in this or any other state, or of a federal
prosecutor's office, and the murder was intentionally carried out in
retaliation for, or to prevent the performance of, the victim's
official duties.
   (12) The victim was a judge or former judge of any court of record
in the local, state, or federal system in this or any other state,
and the murder was intentionally carried out in retaliation for, or
to prevent the performance of, the victim's official duties.
   (13) The victim was an elected or appointed official or former
official of the federal government, or of any local or state
government of this or any other state, and the killing was
intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
   (14) The murder was especially heinous, atrocious, or cruel,
manifesting exceptional depravity.  As used in this section, the
phrase "especially heinous, atrocious, or cruel, manifesting
exceptional depravity" means a conscienceless or pitiless crime that
is unnecessarily torturous to the victim.
   (15) The defendant intentionally killed the victim while lying in
wait.
   (16) The victim was intentionally killed because of his or her
race, color, religion, nationality, or country of origin.
   (17) The murder was committed while the defendant was engaged in,
or was an accomplice in, the commission of, attempted commission of,
or the immediate flight after committing, or attempting to commit,
the following felonies:
   (A) Robbery in violation of Section 211 or 212.5.
   (B) Kidnapping in violation of Section 207, 209, or 209.5.
   (C) Rape in violation of Section 261.
   (D) Sodomy in violation of Section 286.
   (E) The performance of a lewd or lascivious act upon the person of
a child under the age of 14 years in violation of Section 288.
   (F) Oral copulation in violation of Section 288a.
   (G) Burglary in the first or second degree in violation of Section
460.
   (H) Arson in violation of subdivision (b) of Section 451.
   (I) Train wrecking in violation of Section 219.
   (J) Mayhem in violation of Section 203.
   (K) Rape by instrument in violation of Section 289.
   (L) Carjacking, as defined in Section 215.
   (18) The murder was intentional and involved the infliction of
torture.
   (19) The defendant intentionally killed the victim by the
administration of poison.
   (20) The victim was a juror in any court of record in the local,
state, or federal system in this or any other state, and the murder
was intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
   (21) The murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at another
person or persons outside the vehicle with the intent to inflict
death.  For purposes of this paragraph, "motor vehicle" means any
vehicle as defined in Section 415 of the Vehicle Code.  
   (22) The defendant mutilated the victim's corpse for the purpose
of concealing the murder.
   (23) The defendant committed sexual acts upon the corpse after the
murder. 
   (b) Unless an intent to kill is specifically required under
subdivision (a) for a special circumstance enumerated therein, an
actual killer, as to whom the special circumstance has been found to
be true under Section 190.4, need not have had any intent to kill at
the time of the commission of the offense which is the basis of the
special circumstance in order to suffer death or confinement in the
state prison for life without the possibility of parole.
   (c) Every person, not the actual killer, who, with the intent to
kill, aids, abets, counsels, commands, induces, solicits, requests,
or assists any actor in the commission of murder in the first degree
shall be punished by death or imprisonment in the state prison for
life without the possibility of parole if one or more of the special
circumstances enumerated in subdivision (a) has been found to be true
under Section 190.4.
   (d) Notwithstanding subdivision (c), every person, not the actual
killer, who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits,
requests, or assists in the commission of a felony enumerated in
paragraph (17) of subdivision (a) which results in the death of some
person or persons, and who is found guilty of murder in the first
degree therefor, shall be punished by death or imprisonment in the
state prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has been
found to be true under Section 190.4.
   The penalty shall be determined as provided in this section and
Sections 190.1, 190.3, 190.4, and 190.5.
  SEC. 2.  Section 190.2 of the Penal Code, as amended by Section 2
of Chapter 629 of the Statutes of 1998, is amended to read:
   190.2.  (a) The penalty for a defendant who is found guilty of
murder in the first degree is death or imprisonment in the state
prison for life without the possibility of parole if one or more of
the following special circumstances has been found under Section
190.4 to be true:
   (1) The murder was intentional and carried out for financial gain.

   (2) The defendant was convicted previously of murder in the first
or second degree.  For the purpose of this paragraph, an offense
committed in another jurisdiction, which if committed in California
would be punishable as first or second degree murder, shall be deemed
murder in the first or second degree.
   (3) The defendant, in this proceeding, has been convicted of more
than one offense of murder in the first or second degree.
   (4) The murder was committed by means of a destructive device,
bomb, or explosive planted, hidden, or concealed in any place, area,
dwelling, building, or structure, and the defendant knew, or
reasonably should have known, that his or her act or acts would
create a great risk of death to one or more human beings.
   (5) The murder was committed for the purpose of avoiding or
preventing a lawful arrest, or perfecting or attempting to perfect,
an escape from lawful custody.
   (6) The murder was committed by means of a destructive device,
bomb, or explosive that the defendant mailed or delivered, attempted
to mail or deliver, or caused to be mailed or delivered, and the
defendant knew, or reasonably should have known, that his or her act
or acts would create a great risk of death to one or more human
beings.
   (7) The victim was a peace officer, as defined in Section 830.1,
830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37,
830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged
in the course of the performance of his or her duties, was
intentionally killed, and the defendant knew, or reasonably should
have known, that the victim was a peace officer engaged in the
performance of his or her duties; or the victim was a peace officer,
as defined in the above-enumerated sections, or a former peace
officer under any of those sections, and was intentionally killed in
retaliation for the performance of his or her official duties.
   (8) The victim was a federal law enforcement officer or agent who,
while engaged in the course of the performance of his or her duties,
was intentionally killed, and the defendant knew, or reasonably
should have known, that the victim was a federal law enforcement
officer or agent engaged in the performance of his or her duties; or
the victim was a federal law enforcement officer or agent, and was
intentionally killed in retaliation for the performance of his or her
official duties.
   (9) The victim was a firefighter, as defined in Section 245.1,
who, while engaged in the course of the performance of his or her
duties, was intentionally killed, and the defendant knew, or
reasonably should have known, that the victim was a firefighter
engaged in the performance of his or her duties.
   (10) The victim was a witness to a crime who was intentionally
killed for the purpose of preventing his or her testimony in any
criminal or juvenile proceeding, and the killing was not committed
during the commission or attempted commission, of the crime to which
he or she was a witness; or the victim was a witness to a crime and
was intentionally killed in retaliation for his or her testimony in
any criminal or juvenile proceeding.  As used in this paragraph,
"juvenile proceeding" means a proceeding brought pursuant to Section
602 or 707 of the Welfare and Institutions Code.
   (11) The victim was a prosecutor or assistant prosecutor or a
former prosecutor or assistant prosecutor of any local or state
prosecutor's office in this or any other state, or of a federal
prosecutor's office, and the murder was intentionally carried out in
retaliation for, or to prevent the performance of, the victim's
official duties.
   (12) The victim was a judge or former judge of any court of record
in the local, state, or federal system in this or any other state,
and the murder was intentionally carried out in retaliation for, or
to prevent the performance of, the victim's official duties.
   (13) The victim was an elected or appointed official or former
official of the federal government, or of any local or state
government of this or any other state, and the killing was
intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
   (14) The murder was especially heinous, atrocious, or cruel,
manifesting exceptional depravity.  As used in this section, the
phrase "especially heinous, atrocious, or cruel, manifesting
exceptional depravity" means a conscienceless or pitiless crime that
is unnecessarily torturous to the victim.
   (15) The defendant intentionally killed the victim by means of
lying in wait.
   (16) The victim was intentionally killed because of his or her
race, color, religion, nationality, or country of origin.
   (17) The murder was committed while the defendant was engaged in,
or was an accomplice in, the commission of, attempted commission of,
or the immediate flight after committing, or attempting to commit,
the following felonies:
   (A) Robbery in violation of Section 211 or 212.5.
   (B) Kidnapping in violation of Section 207, 209, or 209.5.
   (C) Rape in violation of Section 261.
   (D) Sodomy in violation of Section 286.
   (E) The performance of a lewd or lascivious act upon the person of
a child under the age of 14 years in violation of Section 288.
   (F) Oral copulation in violation of Section 288a.
   (G) Burglary in the first or second degree in violation of Section
460.
   (H) Arson in violation of subdivision (b) of Section 451.
   (I) Train wrecking in violation of Section 219.
   (J) Mayhem in violation of Section 203.
   (K) Rape by instrument in violation of Section 289.
   (L) Carjacking, as defined in Section 215.
   (M) To prove the special circumstances of kidnapping in
subparagraph (B), or arson in subparagraph (H), if there is specific
intent to kill, it is only required that there be proof of the
elements of those felonies.  If so established, those two special
circumstances are proven even if the felony of kidnapping or arson is
committed primarily or solely for the purpose of facilitating the
murder.
   (18) The murder was intentional and involved the infliction of
torture.
   (19) The defendant intentionally killed the victim by the
administration of poison.
   (20) The victim was a juror in any court of record in the local,
state, or federal system in this or any other state, and the murder
was intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
   (21) The murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at another
person or persons outside the vehicle with the intent to inflict
death.  For purposes of this paragraph, "motor vehicle" means any
vehicle as defined in Section 415 of the Vehicle Code.  
   (22) The defendant mutilated the victim's corpse for the purpose
of concealing the murder.
   (23) The defendant committed sexual acts upon the corpse after the
murder. 
   (b) Unless an intent to kill is specifically required under
subdivision (a) for a special circumstance enumerated therein, an
actual killer, as to whom the special circumstance has been found to
be true under Section 190.4, need not have had any intent to kill at
the time of the commission of the offense which is the basis of the
special circumstance in order to suffer death or confinement in the
state prison for life without the possibility of parole.
   (c) Every person, not the actual killer, who, with the intent to
kill, aids, abets, counsels, commands, induces, solicits, requests,
or assists any actor in the commission of murder in the first degree
shall be punished by death or imprisonment in the state prison for
life without the possibility of parole if one or more of the special
circumstances enumerated in subdivision (a) has been found to be true
under Section 190.4.
   (d) Notwithstanding subdivision (c), every person, not the actual
killer, who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits,
requests, or assists in the commission of a felony enumerated in
paragraph (17) of subdivision (a) which results in the death of some
person or persons, and who is found guilty of murder in the first
degree therefor, shall be punished by death or imprisonment in the
state prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has been
found to be true under Section 190.4.
   The penalty shall be determined as provided in this section and
Sections 190.1, 190.3, 190.4, and 190.5.
  SEC. 3.  Section 1 of this act shall become operative only if
Section 190.2 of the Penal Code, as amended by Section 2 of Chapter
629 of the Statutes of 1998, is rejected by the voters at the March
7, 2000 primary election, in which case, Section 2 of this act shall
not become operative and shall not be submitted to the voters.
  SEC. 4.  Section 2 of this act shall become operative only if
Section 190.2 of the Penal Code, as amended by Section 2 of Chapter
629 of the Statutes of 1998, is approved by the voters at the March
7, 2000 primary election, in which case, Section 1 of this act shall
not become operative and shall not be submitted to the voters.
  SEC. 5.  Sections 1 and 2 of this act affect an initiative statute
and shall become effective only when submitted to, and approved by,
the voters pursuant to subdivision (c) of Section 10 of Article II of
the California Constitution and in accordance with Section 3 of this
act.